Affidavits

Blank affidavit form for free download

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The form below is a free, blank affidavit form in Microsoft Word format for downloading. The blank affidavit template follows the essential setup of an affidavit first outlined in Bacon’s Abridgement (Matthew Bacon, “A New Abridgement of the Law”, London 1832), but with a neat layout to incorporate modern word processing styles.

Affidavits such as this one have a long history of being used as a manner of given sworn evidence in court proceedings, and an affidavit in this format will be recognised as effective in most common law legal systems today provided it is correctly sworn before a witness authorised to administer an oath. However most courts will have their own form of affidavit which may have additional matters included (often headers identifying the proceeding number and so on), and you should use the affidavit appropriate for that court if relevant.

In addition, some legal systems will have made statutory alterations to the common law which may require additions to be made to this form. Click below for the free affidavit template.

General affidavit common law




Always use the words of the witness when writing an affidavit

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A key trap for lawyers who are drafting affidavits for others to swear is to avoid using the words and language of the witness. Instead, the lawyer will substitute their own language (and often will “translate” what the witness has told them into more grandiose language). This practise is to be avoided.

An affidavit is the sworn evidence of the witness, not of the lawyer. It should use the words of the witness. Of course a good lawyer will write the document in a format that is accessible – the affidavit should be an ordered, digestible, logical statement of the witness’s evidence, not merely a transcript of the lawyer’s interview with them. And excessive colloquialism should be avoided because an affidavit is a formal document (although if the witness cannot find an alternative expression, the colloquialism should remain).

Using the words of the witness is important because the witness can be cross-examined on the words of their affidavit. If they do not know what a word means – or suggest to the cross-examiner that the words are their lawyers or that “I wouldn’t have put it like that” – confidence in the affidavit can be undermined. If this occurs, the weight afforded to the affidavit as evidence may be reduced.

Conversely, if the affidavit does seem to faithfully reflect the words of the witness, the court can have confidence in that affidavit as a carefully prepared and accurate piece of evidence, put together calmly and outside the pressure of the witness box or stand. It is likely to be afforded significant weight in these circumstances.

An excellent example of using the words of the witness can be found in Hugh Grant’s witness statement to the Leveson Inquiry in 2011. The whole language of the witness statement sounds like it is Hugh Grant speaking (as it is). The statement begins:

Introduction

3. I’d like, if I may, to make this statement wearing four hats.  First as a normal person who used occasionally to buy and read popular newspapers.  Then as someone who became a subject of interest to those papers.  Then as someone who became a student of those papers – of their methods and of their influence over the police and government.  And finally as someone who takes an interest in how our laws might protect public interest journalism while dealing with the abuses of some non public interest journalism.

First Hat – Normal Punter

4. Growing up, if my brother or I happened to have bought a copy of the News of the World my mother would say, “How can you bring that filth into this house?  Then, after a pause:  “After you with it.”  And I suppose that was my attitude to papers like the News of the World for the first 33 years of my life.  It’s probably the attitude of most people.  (Or was, until July.)  That they were a bit of largely harmless fun.

The witness statement continues in a similar vein, but goes on to make some strong points based on the history that Hugh Grant has set out. The reader is left in no doubt that the words of the witness statement and the opinions expressed in it are those of Hugh Grant. In consequence, the witness statement is a compelling piece of advocacy.

What is an affidavit in reply?

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An affidavit in reply (sometimes called a “reply affidavit”) is a technical term used by lawyers in the USA, English and Australian legal systems. An affidavit in reply can be defined as an affidavit served in court proceedings in which a deponent responds to another party’s evidence where that party’s evidence was itself in response to evidence served by the party serving the reply affidavit. In the same way, reply submissions or reply briefs allow the party who started a particular process (the “moving party” in the case of applications) to get the last word by replying to any response to their initial document.

This all sounds slightly complicated but can be explained by a couple of examples.

Examples

Example 1: the plaintiff serves its affidavit evidence in the proceedings. The defendant serves its affidavit evidence. The plaintiff may then respond to the defendant’s evidence by serving affidavits in reply.

Example 2: the defendant brings an interlocutory application before the court such as a motion for summary dismissal. The defendant, as the moving party, will serve its affidavits in support of the motion. The plaintiff will then serve its affidavits. The defendant may then reply to the plaintiff’s affidavits by serving affidavits in reply.

As these examples demonstrate, the party with the opportunity to serve affidavits in reply is always the moving party (ie the party who serves their affidavits first in a particular instance), whatever their designation might be as plaintiff, defendant etc.

Content of an affidavit in reply

The purpose of an affidavit in reply is simply to rebut or answer matters raised for the first time in the affidavits to which the replies are made. Therefore a plaintiff cannot “save” matters from its initial affidavits (its “affidavits in chief”) and then put those matters in affidavits in reply. This is known as impermissibly “splitting the case.” Rather, the affidavits in reply should only rebut or answer new matters raised by the defendants which the plaintiffs have not already addressed. In this way each party gets a chance to raise new matters once, and to reply to the other party’s new matters once.

Who can make an affidavit in reply?

There is no restriction on who can make an affidavit in reply. In particular, there is no requirement that the deponent of an affidavit in reply must previously made an affidavit in the proceedings. Sometimes they will have and sometimes they will not have. Both lay and expert witnesses can give evidence in reply.

Does a party have to serve affidavits in reply?

There is no compulsion to serve affidavits in reply, and they should only be prepared if they are necessary to rebut a proposition. Sometimes there will be no entitlement to serve affidavits in reply if there is no rule, procedure, order or convention entitling a party to do so.

Can you backdate or postdate an affidavit?

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Backdating and postdating affidavits are different concepts but they give rise to the same problem. To backdate an affidavit means to give it a date before it was actually sworn or affirmed. To postdate an affidavit means to give it a date after it was sworn or affirmed.

Either way, it is not permissible to backdate or postdate an affidavit. The date on the affidavit must be the date on which the affidavit is actually sworn or affirmed.

One reason for this is that the date on the affidavit is the date on which the affiant is saying that the matters stated in the affidavit are true. They may not be true before or after that date, but that is not the point.

Secondly, the date helps evidence when, how and before whom the affidavit was sworn or affirmed, just in case these matters were contested. This is why the witness (usually a notary public) must give their details on the affidavit. These matters can be and sometimes are contested.

Most importantly, it is misleading for a document to represent that it was sworn or affirmed on a particular date if, in fact, it was not. This misrepresentation is not cured simply because the person swearing the affidavit would have given the same evidence on two days.

The backdating or postdating makes the affidavit misleading and irregular.

Practical considerations

Sometimes the date on an affidavit will be left blank when the document is printed, for instance because when the affidavit is printed it is not known exactly on what date the affidavit will be sworn or affirmed. In these situations, the person swearing the affidavit or the witness should handwrite the date in before the affidavit is sworn or affirmed.

Also, if the wrong date is typed in then this should be crossed out in handwriting and the correct date written in before the affidavit is sworn or affirmed. The person swearing the affidavit and the witness must both sign beside the alteration when signing the affidavit.

The practise in some jurisdictions is for initials to be placed beside alterations instead of full signatures. Other jurisdictions required the alteration to be “ticked” as well as the placing of the signatures or initials.

Some forms of affidavit may have the date in two or more places. It is necessary that all these dates are correct (and therefore are the same). An affidavit that purports to be sworn or affirmed on two different dates is irregular.

If challenged it may be necessary for the affiant and / or the witness to give evidence of the actual date of swearing or affirming the affidavit to correct the defect. This should be avoided, so check carefully before swearing or affirming!

Consequences of backdating or postdating affidavits

Solicitors have been reprimanded for incorrectly dating affidavits. Two significant disciplinary decisions are:

The Canadian case of Re: Stanley Foo (Discipline Case Digest — 1999: No. 07 April (Foo))

In this case a solicitor drafted and dated an affidavit six weeks later than the date on which it was actually sworn.

The hearing panel held that this constituted professional misconduct and was a breach of the lawyer’s duty to uphold the administration of justice. The solicitor received a fine.

The Australian case of Re a Barrister and Solicitor (1984) 58 ACTR 1

In this case the solicitor changed the date that an affidavit was sworn without having the person who made the affidavit reswear it. This meant the affidavit appeared to have been sworn on a date later than which it was really sworn.

The court found that the solicitor had filed the document with the court knowing it was false in a material particular. The solicitor was reprimanded and received a fine.

Types of affidavit

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Affidavits come in many different types. Some of the most popular types of affidavits are explained below.

Please remember that, whatever the type of affidavit, it will still need to satisfy the definition of affidavit and comply with the appropriate drafting principles.

Your affidavit should also use the correct form for that type of affidavit.

Some common types of affidavit are listed below.

 Affidavit of service

An affidavit of service is an affidavit in which the person making the affidavits swears or affirms they have served documents on another person.

The documents are usually court documents and the affidavit of service is sworn to prove the service of the court documents.

For example, if a person who is sued does not turn up to court to defend the proceedings then the court may enter judgment for the plaintiff.

However the court will require proof that the defendant has been served with the court documents. This proof is usually supplied by tendering an affidavit of service to the court.

Depending on the jurisdiction and court rules, an affidavit of service may annex copies of the document(s) served or it may simply describe the document(s) by reference to the proceedings (eg “a copy of the statement of claim in the proceedings numbered 123 of 2012 between John Doe as plaintiff and Richard Smith as defendant”).

 Affidavit of debt

An affidavit of debt is an affidavit sworn by a creditor to provide evidence of an unpaid debt owed to the creditor by an individual or company.

Affidavits of debt may be required in bankruptcy or liquidation proceedings, or in support of a statutory demand for money (which may result in winding up proceedings if the company does not pay the amount referred to in the affidavit of debt and demanded in the statutory demand).

 Affidavit of domicile

The term “affidavit of domicile” is used in the field of wills and estates.

When someone dies, the executor of their estate will in some jurisdictions be required to make an affidavit that states the place where the dead person was living (ie domiciled) at the time of their death.

 Affidavit of domicile and debt

An affidavit of domicile and debt is an affidavit of domicile (see above) in which the executor also states that all the debts, taxes and claims against the estate have been satisfied out of the estate.

The affidavit is made so that any property owned by the deceased can be transferred to descendants or to its new legal owner (such as a purchaser).

 Affidavit of support / affidavit in support

The terms “affidavit of support” and “affidavit in support” are used interchangeably in legal proceedings to refer to an affidavit that provides the evidence in support of an application for particular orders.

The terms are usually used where the orders sought are interlocutory – that is they are orders sought in addition to, and usually prior to, the main orders sought in the proceeding.

For example, if a plaintiff sought an adjournment of proceedings for four weeks because a witness was ill, the affidavit of support / affidavit in support would provide the evidence of that illness to the court.

 Affidavit in chief

An affidavit in chief is the main affidavit evidence in support of a party’s claim or defence in court proceedings. It should contain all the evidence required to make out the claim or defence.

A party may file many affidavits in chief in support of its case or defence. These may include multiple affidavits that are sworn or affirmed by the same deponent.

 Affidavit in reply

As its name suggests, an affidavit in reply is an affidavit in which a party replies to the opponent’s affidavit(s) in chief.

Affidavits in reply may be required to be limited only to answering new matters raised by the opponent’s affidavits in chief.

It is not necessary for a deponent of an affidavit in reply to have themselves made an affidavit in chief but, if they have, the deponent should not repeat the matters that are in their affidavit in chief. Instead they should confine their reply to answering new matters raised by the opponent’s affidavits in chief.